( ( STATE OF WISCONSIN CIRCUIT COURT MANITOWOC COUI{TY Srern or WrscoNSrN, &{Afltrcw0c colrsff FEtffiffig?e?e oF&18e0$8$r Plaintiff, iul 14 200$ a. Case No. 2005-CF-381 trt*ffiffi SF fifftSEJtT UffWRT SrnvEN A. AvEnv, Defendant. DEFENDANT'S MEMORANDUM ON EXAMPLES OF PREIUDICIAL PRETRIAL PUBLICITY I. INTRODUCTION Steven Avery has assembled a sample of the massive pretrial publicity in this case/ and submitted that to the Court (without objection from the state) in the form of 24 DVD's of television coverage of the investigation into Teresa Halbach's disappearance and this prosecution, and two banker's boxes of photocopies of newspaper articles, teleprompter scripts, radio broadcasts, and comment on the case from websites. This case has received saturation coverage. In part because of his change of counsel, from the Wisconsin Public Defender's office to retained counsel, and in partbecause the task would have been impossible, Mr. Avery mad.e no effort R) (,) to collect all media coverage of this case. The earlier Affidavit of Dean A. Strang outlines in overview the contents of the sample materials he did gather. Because even that mass of information remains daunting (the television coverage alone apparently runs to more than 20 hours of back-to-back clips relating to this case), Avery now offers a sample of his samples. The discussion that follows is illustrative, not exhaustive, and Mr. Avery stands in the end on all of the evidence of pretrial publicity in the record. II. EXAMPLES A. Recurring Themes. The defense has submitted 24DVD's of nothing but Avery clips, with at least one of the DVD's more than 2 hours long. Even that sample of television coverage stops in late April 2006 (when expense became prohibitive and the cumulative effect of the publicity clear). And there is a gap between mid-November 2005 and March 2,2006, except for a very few Milwaukee clips in ]anuary. '1,,2006, 1. Another feature to publicity since March when Avery's case overiaps with Brendan Dassey's is the latter's lawyers blaming Avery. Understandably, but unfairly all the same, Mr. Dassey's lawyers (Ralph Sczygelski (r) and then Len Kachinsky) both have heaped blame on Mr. Avery when arguing on behalf of Mr. Dassey in court and in making extrajudicial comments to the media. The unfair prejudice to Mr. Avery has been exacerbated by repeated reports of Mr. Kachinsky claiming that Mr. Avery is hying to influence Mr. Dassey to fire Mr. Kachinsky or not to accept a plea agreement. 2' Next, the state conducted eight televised news conferences, atleast. All eight named Avery, commented on inflammatory inadmissible information, and commented as well on evidence and evidentiary detail. Four came after the state charged Mr. Avery. This matters. "The participation of the state in promulgating adverse publicity is relevant in determining whether the trial court abused its discretioninnotgrantingavenuechange." Briggsu.State,76Wis.Zdglg,g2Z,ZS1, N.W.2d 12,'l'B (1977). InBriggs, the district attorney and sheriff conducted but one Press conference. "The press conference was short and informational in nature. The identity of the defendant was not revealed, nor was the shooting incident described with specificity ." Briggs, 76 Wis. 2d at g2T, 2S1N.W.2d at 18. Again, Mr. Avery was identified by name from the beginning of the eight Press conferences, including as a "person of interest." Details of the state's evidence also have become increasingly specific during the course of those news conferences, culminating in the gruesome, step-by-step recounting of the state's factual theory of torture and killing on Mar ch 2. Potential jurors likely will recall that version, (r) ( even though the state's theory now is shifting as forensic evid.ence debunks Mr. Dassey's March 1 version of events and as Mr. Dassey has changed his statement substantially on May 13. 3. The wrongful death'action that the Halbach family filed has been covered extensively. Likely, that case is inadmissible in its entiretv. yet information about it has included: a. the fact that it was filed. b. the Halbach family's claim of fraudulent transfer by Avery of settlement proceeds (denial of that motion received almost no attention). c. the Halbach's lawyer, Patrick coffey, was quoted saying of Avery that he got" caught with his hand in the cookie jar." rn essence, Judge Deets found otherwise. d. the amount of the S 1983 settlement was linked to Avery's attorney fee here. 4. The S 1983 case itself has been the subject of extensive coverage. a. the amount of settlement, which will seem like a lot of money to many people. It creates the false impression that Avery, or his lawyers, became wealthy because of his wrongful convictiory at the expense of Manitowoc County citizens. (-) ( { b. the fight between lawyers over share of settlement proceeds has been subject to considerable comment. 5' Many images have appeared on TV and the internet of Averv in a cartoonish jail uniform, sometimes in slow motion. a. he also has been displayed in visible shackles. b. the court itself already has recognized the prejudice of those images. That is the reason the court ordered that Mr. Avery be permitted to appear in civilian clothing even at pretrial proceedings. c. to counsel's observation, the depiction of Avery in shackles continued during and after the Juty s,2006 hearing, including with zoomshots onlegrestraints and the process of handcuffing on at least one television station. See, e.g,, wfrv.com f vid,eo, "Avery's Attorney says His client Has Become a poster child For the Death Penalty" and "Avery's Attorneys Argue to Reduce BaII," both 7 /5/06. 6. This case has become tied to the advisory death penalty referendum in the media. a. For example, a 3 / 9 / 06 editorial in the ApprnroN posr-cnESCENr tied the two together. \115\ b. a 12/ 1/ 05 WtscoNsw SrerE ]ounNar editorial did the same. c. a5/5/}6MnweurrrJounNersENrNsrarticleprovided"news analysis" tying the two together. d. contrary to the state's argument on Juty 5, it is not defense counsel who has linked the death penalty referendum to the Avery prosecution. The television coverage shows repeatedly that politicians and the media themselves made that link long before counsel called it to the court's attention onJuly 5. Avery agrees with the special prosecutor's observation on July 5 that the death penalty referendum has no place in the courtroom in this case. But politicians and the media have put it there, not the defense. 7 . The Green Bay and Milwaukee television stations have given extensive coverage of suppression motions in both the Dassey and Avery cases. Through that coverage, the public has learned about potentially inadmissible material and defense efforts to exclude it. The Dassey case in particular involved not just an attempt to suppress evidence, but an attempt to suppress evidence that the public does not understand is inadmissible in Avery's case in any event, unless Dassey testifies. The Dassey suppression hearing was webcast live on WFRV-TV. 8. Some of the television coverage in 2005 reported on Mr. Avery's Department of Corrections prison files. These included letters to Mr. Averv's wife z\ { 6\ \. 1 ! i at the time, ]udge Hazelwood's comments in a hearing on child visitation rights, and comments of inmates. Much or all of this may prove inadmissible at trial. Specific Examples. 1'. 11/11/05 press conference: the special prosecutor makes claims of superior knowledge; and in Mr. Kratz'smind there is "no question" about who was responsible for Teresa Halbach's death. He also opined that her car key was "hidden" to avoid detection. 2. Mr. Kratz forecast a murder charge onl1, / 11 / 05 at a news conference. He did not note that any charge would require a judge's probable cause assessment. 3. 11/14/ 05: ApprnroxPosr-CnESCENreditorial,"HalbachFamilyFaces Tragedy with Strength." This is editorial comment on the case,lionizing the family of the victim and appealing to potential jurors' sympathy and consideration of other irrelevant facts. 4. 11/19/05: Teresa Halbach funeral broadcast live. This was heart- rending material obviously inappropriate for consideration by the jury venire. The Court presumably would not seat a juror who knew Ms. Halbach or her family well enough to attend her funeral. By television, though, now thousands had the experience of attending the funeral. i') 5. 3/1, and 3/2/06: on successive days in lengthy, gripping news conferences, the special prosecutor repeatedly informed the public of inadmissible statements by Brendan Dassey. 6. 3/2/06 news conference included warning of graphic content and almost 25 minutes of lurid allegations that were and are inadmissible against Steven Avery unless Brendan Dassey testifies. 7. 3/2/06: the news conference included another claim of superior knowledge, with Mr. Kratz telling the public that law enforcement now "knows" what happened at the Avery property. B. 5/10-11/06: these are the dates of Sheriff Kenneth Petersen's appearance on the Fox 11 special series that has been discussed in depth. That two- part series also included: a. the criminal record of all Avery siblings b. long distant criminal record of steven Avery, much of it not admissible (particularly a prejudicial description of "the burning cat," to use Sheriff Petersen's term). c. the May 10 segment included an "Attempted Murder" headline from Mr. Avery's 1985 case. This is especially prejudicial because the public in general thinks of the 1985 case as a rape case, and may conclude erroneously in this murder prosecution 1s\\) that Mr.